How to prove use of an EU trademark

Proof of use means showing four things together: the mark as registered, on the goods or services it was registered for, in the European Union, during the relevant five-year period. Miss any one and the evidence does not carry.

This is what a proof of use request looks for, whether it arrives inside an opposition or as a cancellation action.

What exactly did you register?

Start with the registration, not with what you think your brand is.

Is it a word? A word and a logo? If there is a logo, what are its elements: the shapes, the colours, their arrangement? Those elements are the distinctive character of the mark, and distinctive character is what makes consumers recognise where a product came from.

For use to count, the distinctive character of the mark as registered must not have been altered by how you actually used it.

Does a rebrand break the chain?

It can, and this is where companies get caught.

A change of colour alone usually does not alter distinctive character, as long as the other elements stay the same and the contrast between shades is respected. Restructuring the logo, dropping a word, or changing the arrangement can alter it, in which case use of the new version does not prove use of the old registration.

If you have rebranded during the five-year window, check this before you rely on the older registration. It is often cheaper to file the new version than to argue that the old one covers it.

Territory: where does use have to happen?

Inside the European Union. Use in one member state can be enough, depending on the market and the goods, but it has to be real trading, not a token shipment created to defend the registration.

Use outside the EU does not help an EU trademark, however substantial it is.

Which five years?

The five years immediately before the request, or before the application date of the mark you are opposing. Evidence from outside that window does not count towards the test, though it can help show a continuous pattern.

What evidence carries weight?

Documents that connect the mark, the goods and a date, and that came from the ordinary course of business rather than from preparing the case.

Volume matters less than coherence. A modest business with dated invoices, packaging and a consistent mark is in a better position than a larger one with a folder of undated images.

Are there acceptable reasons for not using it?

Yes, but they are narrow. There have to be proper reasons for non-use: obstacles independent of your will that made use impossible or unreasonable, such as a regulatory approval you were waiting on. A change of business plan, lack of funding, or simply not getting round to it are not proper reasons.

What happens if you cannot prove it?

In an opposition, the opposition is rejected and the mark you were opposing registers. In a cancellation action, your registration is revoked for the goods you could not evidence. Often that is the speculative half of a specification, filed broadly years earlier.

Why an unused EU trademark can be cancelled covers the mechanics.

The practical advice

Build the file as you trade, by year and by country. Nobody has ever regretted having it, and reconstructing five years of evidence after a request arrives is where most of these cases are lost.

If a proof of use request has landed, send it to us with the deadline.